Generally

Issues regarding custody and visitation will always arise in a Dissolution of Marriage proceeding if there are children, and can also arise in paternity cases or independent actions for custody. When parents are divorcing, the law requires that the Court order a parenting plan as part of the dissolution. When the parents are not married, it is often in the interest of the child for one or both of the parents to seek a custody and visitation order from the court.

Advantages of a court ordered parenting plan

A parenting plan ordered by the court will help parents co-parent if they are unmarried or after they have separated or divorced. The plan will give the parents a written guideline of what each parent’s responsibilities are, what obligations that they have to their children, the establishment of child support and will give them a court ordered document to rely on should disputes arise. The plan will also prohibit one parent from relocating the child to another residence without the specific consent of the other parent, or an order from the Court.

Contents of the Parenting Plan

Legal custody – Legal custody means generally the rights of the parents to make decisions regarding training, education, and rearing, etc. and includes:

The choice or change of school, college, camp, or comparable summer activity

Special tutoring, music, sports, art, dance, and other cultural lessons

Psychological or psychiatric treatment or counseling, doctors, and surgeons; notice of illness and injury; and

All other material decisions affecting the health, education, and welfare of the children

The parties will jointly decide the following:

Educational instruction

Religious instruction

Health care

Discipline

Child care providers

In Missouri, there is a strong preference for joint legal custody in parenting plans.

Physical Custody – Physical custody means that the right of the parents to have actual physical parenting time with the children. A determination must be made for a schedule of parenting time, where each parent will have specifically designated times with the children, which generally include a residential schedule, a schedule for holidays, summertime, transportation, and vacations. In Missouri, there is a strong preference for a joint physical custody arrangement. However, joint custody does not necessarily mean that each parent will be with the children for an equal amount of time, it simply means that both parents have physical time with the children. The actual schedule will differ on a case by case basis.

The following are required by Missouri law to be included in a parenting plan:

(1) A specific written schedule detailing the custody, visitation and residential time for each child with each party including:

(a) Major holidays stating which holidays a party has each year;
(b) School holidays for school-age children;
(c) The child's birthday, Mother's Day and Father's Day;
(d) Weekday and weekend schedules and for school-age children how the winter, spring, summer and other vacations from school will be spent;
(e) The times and places for transfer of the child between the parties in connection with the residential schedule;
(f) A plan for sharing transportation duties associated with the residential schedule;
(g) Appropriate times for telephone access;
(h) Suggested procedures for notifying the other party when a party requests a temporary variation from the residential schedule;
(i) Any suggested restrictions or limitations on access to a party and the reasons such restrictions are requested;

(2) A specific written plan regarding legal custody which details how the decision-making rights and responsibilities will be shared between the parties including the following:

(a) Educational decisions and methods of communicating information from the school to both parties;
(b) Medical, dental and health care decisions including how health care providers will be selected and a method of communicating medical conditions of the child and how emergency care will be handled;
(c) Extracurricular activities, including a method for determining which activities the child will participate in when those activities involve time during which each party is the custodian;
(d) Child care providers, including how such providers will be selected;
(e) Communication procedures including access to telephone numbers as appropriate;
(f) A dispute resolution procedure for those matters on which the parties disagree or in interpreting the parenting plan;
(g) If a party suggests no shared decision-making, a statement of the reasons for such a request;

(3) How the expenses of the child, including child care, educational and extraordinary expenses as defined in the child support guidelines established by the Supreme Court, will be paid including:

(a) The suggested amount of child support to be paid by each party;
(b) The party who will maintain or provide health insurance for the child and how the medical, dental, vision, psychological and other health care expenses of the child not paid by insurance will be paid by the parties;
(c) The payment of educational expenses, if any;
(d) The payment of extraordinary expenses of the child, if any;
(e) Child care expenses, if any;
(f) Transportation expenses, if any.

Factors the Court must consider in ordering a parenting plan

The court shall determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including:

(1) The wishes of the child's parents as to custody and the proposed parenting plan submitted by both parties;

(2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;

(3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child's best interests;

(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;

(5) The child's adjustment to the child's home, school, and community;

(6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and any other child or children for whom the parent has custodial or visitation rights, and the parent or other family or household member who is the victim of domestic violence from any further harm;

(7) The intention of either parent to relocate the principal residence of the child; and

In Missouri, there is a specific law that details under what circumstances Missouri Courts have jurisdiction to make custody and visitation orders, called the Jurisdiction under Uniform Child Custody Jurisdiction and Enforcement Act or MoUCCJEA. If the requirements of this law are not met, then a Missouri court cannot enter a parenting plan for the children. Even if jurisdiction is proper for, say, dissolution of marriage or a paternity case, the Court can dissolve the marriage or declare a father, but cannot make any orders pertaining to the children.

Selected statues from the MoUCCJEA are set forth below:

Initial Child Custody Jurisdiction

452.740. 1. Except as otherwise provided in section 452.755, a court of this state has jurisdiction to make an initial child custody determination only if:

(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months prior to the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;

(2) A court of another state does not have jurisdiction under subdivision (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section 452.770 or 452.775, and:

(a) The child and the child's parents, or the child and at least one parent or person acting as a parent have a significant connection with this state other than mere physical presence; and
(b) Substantial evidence is available in this state concerning the child's care, protection, training and personal relationships;

(3) All courts having jurisdiction under subdivisions (1) and (2) of this subsection have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under section 452.770 or 452.775; or

(4) No state would have jurisdiction under subdivision (1), (2) or (3) of this subsection.

2. Subsection 1 of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.

3. Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

“Home state" means the state in which a child has lived with a parent or a person acting as a parent for at least six consecutive months immediately prior to the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child has lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of such period.

Exclusive, Continuing Jurisdiction

452.745. 1. Except as otherwise provided in section 452.755, a court of this state that has made a child custody determination consistent with section 452.740 or 452.750 has exclusive continuing jurisdiction over the determination until:

(1) A court of this state determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this state, and that substantial evidence is no longer available in this state concerning the child's care, protection, training and personal relationships; or

(2) A court of this state or a court of another state determines that neither the child, nor a parent, nor any person acting as a parent presently resides in this state.

2. A court of this state that has exclusive continuing jurisdiction under this section may decline to exercise its jurisdiction if the court determines that it is an inconvenient forum under section 452.770.

3. A court of this state that has made a child custody determination and does not have exclusive continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under section 452.740.

Jurisdiction to Modify Determination

452.750. Except as otherwise provided in section 452.755, a court of this state shall not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under subdivision (1) or (2) of subsection 1 of section 452.740 and:

(1) The court of the other state determines it no longer has exclusive continuing jurisdiction under section 452.745 or that a court of this state would be a more convenient forum under section 452.770; or

(2) A court of this state or a court of the other state determines that neither the child, nor a parent, nor any person acting as a parent presently resides in the other state.

Temporary Emergency Jurisdiction

452.755. 1. A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned, or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.

2. If there is no previous child custody determination that is entitled to be enforced under sections 452.700 to 452.930, and if no child custody proceeding has been commenced in a court of a state having jurisdiction under sections 452.740 to 452.750, a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under sections 452.740 to 452.750. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under sections 452.740 to 452.750, a child custody determination made under this section becomes a final determination if:

(1) It so provides; and

(2) This state becomes the home state of the child.

3. If there is a previous child custody determination that is entitled to be enforced under sections 452.700 to 452.930, or a child custody proceeding has been commenced in a court of a state having jurisdiction under sections 452.740 to 452.750, any order issued by a court of this state under this section shall specify in the order a period of time which the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under sections 452.740 to 452.750. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires.

4. A court of this state that has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced, or a child custody determination has been made, by a court of a state having jurisdiction under sections 452.740 to 452.750, shall immediately communicate with the other court. A court of this state that is exercising jurisdiction under sections 452.740 to 452.750, upon being informed that a child custody proceeding has been commenced, or a child custody determination has been made by a court of another state under a statute similar to this section shall immediately communicate with the court of that state. The purpose of such communication is to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.

Inconvenient Forum

452.770. 1. A court of this state that has jurisdiction under sections 452.700 to 452.930 to make a child custody determination may decline to exercise its jurisdiction at any time if the court determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon the court's own motion, at the request of another court or upon motion of a party.

2. Before determining whether the court is an inconvenient forum, a court of this state shall consider whether it is appropriate that a court of another state exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:

(1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(2) The length of time the child has resided outside this state;

(3) The distance between the court in this state and the court in the state that would assume jurisdiction;

(4) The relative financial circumstances of the parties;

(5) Any agreement of the parties as to which state should assume jurisdiction;

(6) The nature and location of the evidence required to resolve the pending litigation, including the testimony of the child;

(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and

(8) The familiarity of the court of each state with the facts and issues of the pending litigation.

3. If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, the court shall stay the proceedings on the condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.

4. A court of this state may decline to exercise its jurisdiction under sections 452.700 to 452.930 if a child custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.

Jurisdiction Declined by Reason of Conduct

452.775. 1. Except as otherwise provided in section 452.755, if a court of this state has jurisdiction under sections 452.700 to 452.930 because a person invoking the jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless:

(1) The parents and all persons acting as parents have acquiesced in the exercise of jurisdiction;

(2) A court of the state otherwise having jurisdiction under sections 452.740 to 452.750 determines that this state is a more appropriate forum under section 452.770; or

(3) No other state would have jurisdiction under sections 452.740 to 452.750.

2. If a court of this state declines to exercise its jurisdiction under subsection 1 of this section, the court may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the wrongful conduct, including staying the proceeding until a child custody proceeding is commenced in a court having jurisdiction under sections 452.740 to 452.750.

3. If a court dismisses a petition or stays a proceeding because it declines to exercise its jurisdiction under subsection 1 of this section, the court shall charge the party invoking the jurisdiction of the court with necessary and reasonable expenses including costs, communication expenses, attorney's fees, investigative fees, expenses for witnesses, travel expenses and child care during the course of the proceedings, unless the party from whom fees are sought establishes that the award would be clearly inappropriate. The court may not assess fees, costs or expenses against this state except as otherwise provided by law other than sections 452.700 to 452.930.